exv10w1






Exhibit 10.1




Execution Copy




FIRST AMENDMENT

TO

STOCK PURCHASE AGREEMENT




     This FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this “Amendment”) is entered into as
of July 3, 2008, by and between VALERO REFINING AND MARKETING COMPANY, a Delaware corporation
(“Seller”), ALON REFINING KROTZ SPRINGS, INC., a Delaware corporation (“Buyer”)
and, for the limited purposes set forth herein, VALERO REFINING COMPANY-LOUISIANA, a Delaware
corporation (the “Company”).



RECITALS




     A. On May 7, 2008, Seller, Buyer and the Company entered into that certain Stock Purchase
Agreement (the “Stock Purchase Agreement”) providing for the sale of the Shares (as defined
in the Stock Purchase Agreement) to Buyer.



     B. The parties to the Stock Purchase Agreement desire to amend the Stock Purchase Agreement to
reflect the matters set forth herein.



     NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties
and covenants contained herein, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS




     Section 1.1 Defined Terms. Capitalized terms used and not otherwise defined herein
shall have the meanings given such terms in the Stock Purchase Agreement.



ARTICLE II

AMENDMENTS




     Section 2.1 Substitution of Exhibits. Each of the following Exhibits to the Stock
Purchase Agreement is hereby replaced with the version attached hereto:



	 	 	 
	Exhibit D

	  	Feedstock and Product Inventory Sales Agreement
	Exhibit F

	 	Transition Services Agreement
	Exhibit G

	 	Offtake Agreement
	Exhibit H

	 	Earnout Agreement
	Exhibit I

	 	Crude Supply Agreement.






     Section 2.2 Amendment Regarding Effective Time of Closing.



     (a) Section 2.4 of the Stock Purchase Agreement is hereby amended to replace the phrase “the
Closing shall be deemed for all tax, accounting and other purposes of this Agreement to be
effective at 12:00:01 A.M. Central time on the Closing Date” with “the Closing shall be deemed to
occur at (i) 12:00:01 A.M. Central time on July 1, 2008 solely for financial purposes,



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including but not limited to, calculating the Net Working Capital and determining the Net
Working Capital Payment and (ii) 12:00:01 A.M. Central time on July 3, 2008 for all other purposes.
For the avoidance of doubt, all income, expenses and other cash flows of the Business during the
period of July 1, 2008 through July 2, 2008 shall be for the account of Buyer, including all
payroll and employee benefit-related expenses, and (i) to the extent Seller or any of its
Affiliates incurs any such expenses, they shall be reimbursed therefor as part of the Net Working
Capital Payment or in such other manner as the Parties may mutually agree, and (ii) to the extent
Seller or any of its Affiliates receives any such income or cash flows of the Business, they shall
be remitted to Buyer as part of the Net Working Capital Payment or in such other manner as the
Parties may mutually agree.”




     (b) Section 2.5(a)(i) of the Stock Purchase Agreement is hereby amended to read as follows:




“(i) $333,000,000 (including interest thereon for the period from 12:00:01 A.M. Central
time on July 1, 2008 through the time of funding at a rate of interest equal to the interest
rate being paid on the Deposit during the same period which interest shall be paid as part of
the Net Working Capital Payment) less the Deposit (including all interest or earnings thereon)
by wire transfer to the account of Seller set forth on Section 2.5(a)(i) of the
Disclosure Schedules;”



     Section 2.3 Amendments Regarding Material Contracts. Section 4.4(a)(ix) of the Stock
Purchase Agreement is hereby amended and restated as follows:




“(ix) any lease under which such Person is the lessor or lessee of personal property or real
property that provides for an annual base rental to or from such Person of more than
$500,000;”



     Section 2.4 Amendments Regarding Environmental Matters. Section 4.7 of the
Stock Purchase Agreement is hereby amended and restated in its entirety as follows:




“Section 4.7 Environmental Matters. To the Knowledge of Seller, except as
set forth in Section 4.7 of the Disclosure Schedules or as would not
reasonably be expected to have a Material Adverse Effect:




     (a) the Company is in material compliance with Environmental Laws applicable to
the Business;




     (b) all material Authorizations reasonably required to be obtained or filed or
applied for by the Company under any Environmental Law in connection with the Assets
as normally operated prior to Closing have been duly obtained or filed or applied
for by the Company; and




     (c) there are no pending or threatened claims, actions, suits, arbitrations,
investigations, inquiries or proceedings by or before any Governmental Authority
under any Environmental Law relating to the Company or the Business.



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The representations and warranties contained in this Section 4.7 are the
only representations and warranties made by Seller with respect to matters arising
under Environmental Law.”



     Section 2.5 Amendments Regarding Post Closing Payments. Section 7.1 of the Stock
Purchase Agreement is hereby amended by adding the following as Section 7.1(f):




“(f) Post Closing Payments. Notwithstanding the foregoing, Buyer and Seller
agree that for any payments that become due from Seller to Post-Closing Employees
after Closing but prior to January 1, 2009, including but not limited to payments in
connection with stock option exercises, sales of restricted stock and retention
bonus payments, Seller may make such payments directly to such Post-Closing
Employees through the Company using the Company’s relevant tax identification
number(s). For the avoidance of doubt, the process for retention bonus payments set
forth in Section 7.1(e) hereof shall not apply for any retention bonuses that may
become payable prior to January 1, 2009, and shall apply to any retention bonuses
that may become payable on or after January 1, 2009.”



     Section 2.6 Amendments Regarding the Use of Names and Logos. Article 7 of the Stock
Purchase Agreement is hereby amended by adding the following as Section 7.18:




“Section 7.18 Use of Names and Logos. Buyer acknowledges and agrees that
after the Closing it shall not use any name or logo owned by Seller and/or any of
Seller’s Affiliates (which for purposes of this Section 7.18 is deemed to not
include the current name of the Company) in the conduct of the Business or any other
business, and, Buyer shall use commercially reasonable efforts to cover or remove
any and all such names and logos from the Assets, including removing any signage
including such names and logos, within ninety (90) days after the Closing Date.”



     Section 2.7 Amendment Regarding Assignment of Certain Seller Contracts.
Article 7 of the Stock Purchase Agreement is hereby amended by adding the following as
Section 7.19:




“Section 7.19 Assignment of Certain Seller Contracts. The parties
acknowledge that certain Seller Contracts must be retained by VMSC in order to perform its
obligations under the Crude Supply Agreement and the Offtake Agreement. Except to the
extent otherwise provided under the Crude Supply Agreement or the Offtake Agreement, as
applicable, upon the expiration or earlier termination of the Crude Supply Agreement and
the Offtake Agreement, respectively, Buyer and Seller shall enter into an Assignment of
Contracts covering all Seller Contracts theretofore retained by Seller in order to perform
thereunder.”



     Section 2.8 Amendments to Disclosure Schedules.




	 	(a)	 	Section 1.1(a) of the Disclosure Schedules is hereby replaced with the version
attached hereto as Section 1.1(a) Permitted Liens.




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	 	(b)	 	Section 4.3(a) of the Disclosure Schedules is hereby replaced with the version
attached hereto as Section 4.3(a) Real Property.
	 
	 	(c)	 	Section 4.7 of the Disclosure Schedules is hereby replaced with the version
attached hereto as Section 4.7 Environmental Matters.
	 
	 	(d)	 	Section 6.8(d) of the Disclosure Schedules is hereby replaced with the version
attached hereto as Section 6.8(d) Pipeline Easements.
	 
	 	(e)	 	Section 4.10(a) “Part I Employees as of the Execution Date” of the Disclosure
Schedules is hereby replaced with the version attached hereto as Section 4.10(a) “Part
I Employees as of June 30, 2008”.
	 
	 	(f)	 	Section 4.10(a) “Part II Employees on Short-Term Leave or Long-Term Disability”
of the Disclosure Schedules is hereby replaced with the version attached hereto as
Section 4.10(a) “Part II Short-Term Inactive Employees — Long-Term Inactive
Employees”.
	 
	 	(g)	 	Section 4.12(b) of the Disclosure Schedules is hereby replaced with the version
attached hereto as Section 4.12(b) Labor-Related Administrative Proceedings.
	 
	 	(h)	 	Section 7.16 “Part II Leased Vehicles” of the Disclosure Schedules is hereby
replaced with the version attached hereto as Section 7.16 “Part II Leased Vehicles”
	 
	 	(i)	 	A new Section 8.3(c)(i) is hereby added to the Disclosure Schedules in the form
attached hereto as Section 8.3(c)(i) “Alternative Contractual Arrangements”





ARTICLE IV

CLOSING CONDITIONS




     Section 4.1 Third Person Consents. Buyer and Seller acknowledge that the Third Person
Consents relating to the first and second Seller Contracts listed in Section 8.3(c) of the
Disclosure Schedule have not been obtained at the time of the Closing. In the absence of such
Third Person Consents, Buyer and Seller agree to the alternative contractual arrangements described
in Section 8.3(c)(i) of the Disclosure Schedule and Buyer acknowledges that such alternative
contractual arrangements satisfy the closing condition set forth in Section 8.3(c) of the Stock
Purchase Agreement to the extent applicable to such Third Person Consents.



ARTICLE IV

MISCELLANEOUS




     Section 4.1 Agreement to Remain in Effect. Except as amended by this Amendment, all
terms and conditions of the Stock Purchase Agreement shall remain in full force and effect among
the parties thereto.



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     Section 4.2 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED (BOTH AS TO VALIDITY AND
PERFORMANCE), INTERPRETED AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE
OF TEXAS.



     Section 4.3 Counterparts. This Amendment may be executed in multiple counterparts and
by the different parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one and the same
agreement.



[Signature Page Follows]




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     IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed as of
the date first written above by their respective officers thereunto duly authorized.



	 	 	 	 	 
	 	VALERO REFINING AND MARKETING COMPANY

 	 
	 	By:  	/s/ S. Eugene Edwards
 	 
	 	 	Name:  	S. Eugene Edwards 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ALON REFINING KROTZ SPRINGS, INC.

 	 
	 	By:  	/s/ Jeff D. Morris
 	 
	 	 	Jeff D. Morris, 	 
	 	 	President and CEO 	 
	 
	 	For the limited purpose of agreeing to the
provisions of Section 2.7 and
Article IV of the Stock Purchase
Agreement to the extent applicable to Company:



VALERO REFINING COMPANY-LOUISIANA

 	 
	 	By:  	/s/ S. Eugene Edwards
 	 
	 	 	Name:  	S. Eugene Edwards 	 
	 	 	Title:  	Executive Vice President